On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-3268-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and King.
Defendant appeals from an order by Judge Innes denying his motion to vacate a default judgment. The judge, following a proof hearing, entered a judgment of about $167,000 in this personal injury accident arising from plaintiff's contract with defendant Ortiz involving tree removal from defendant's property. Defendant appeared at the proof hearing without counsel. He was not represented by counsel until the motion to reopen the judgment under Rule 4:50-1(a) and (f). We affirm on the findings by Judge Innes for the reasons stated in his oral opinion of July 18, 2008 which we quote in pertinent part:
This is a personal injury matter. The defendant Ortiz hired plaintiff Padin to remove two trees outside of his business. While removing the second tree Padin utilized the assistance of Ortiz's truck by attaching the tree to the truck. When Padin chopped the tree down with the chain saw, Ortiz was to pull the tree in the direction of the intended fall. The plan did not work, as conceded, and Ortiz drove the truck, thereby pulling the tree at the wrong time. Padin sustained an injury.
The complaint was filed on December 15th, 2006. Ortiz was served but did not answer the complaint. Default was entered against Ortiz on May 3rd, 2007. Default judgment was entered against Ortiz on November 2nd, 2007. A proof hearing was conducted on May 1st, 2008. Ortiz attended the proof hearing, but did not present evidence or cross examine the plaintiff. The Court entered judgment in favor of Padin in the amount of $167,053.12. This is Ortiz' motion to vacate the judgment.
Ortiz does admit and acknowledge that he received the complaint and summons. He states in his certification that he gave them to his wife to file with the insurance company. Interestingly enough, this is contrary to the testimony, or the statement, let me put it that way, presented by Ortiz at the time of the proof hearing before Judge McManimom in which he did state that he believed he was the person who notified the insurance company.
Ortiz certifies here that he believed his wife had notified the insurance company and that it was representing his interests. He admits that he and his wife were having marital difficulties, and that in fact he believes she failed to notify the insurance company. He states that while he received the various notices and orders he claims to not to have understood them. He also states that he thought that copies were being sent to his insurance company, and that the insurer was handling the issues.
Ortiz did not follow up with the insurance company at any time to find out what, if anything, was being done by them on his behalf. He was never contacted by the insurance company regarding the matter. He claims that his neglect was excusable and that he reasonably believed that his insurance company had undertaken a defense.
The standards for setting aside a default are different if a judgment by default has been entered. Rule 4:43-3 states that, "good cause," must be shown to set aside an entry of default where the judgment has not been entered. If the default judgment has been entered, the default can be set aside only in accordance with Rule 4:50. The court may relieve a party of a default judgment for a number of reasons, including excusable neglect, newly discovered evidence, fraud, satisfaction of the judgment, or a defect of the order. A motion to vacate pursuant to 4:50 must be brought within one year of the judgment. Rule 4:50-2.
The decision whether or not to grant a motion to vacate default judgment is within the discretion of the Court and such motion should be granted sparingly. Housing Authority of Town of Morristown v. Little, 135 N.J. 274 (1994). The motion should not be granted unless the defendant's failure to answer or appear was excusable, and the defendant has a meritorious defense. Marder v. Realty Construction Company, 84 N.J. Super. 313 (App. Div. 1964).
Here the Court must determine whether the neglect of Ortiz was excusable. There is no question that Ortiz received the complaint, and further, that he received the other paperwork and orders of the Court. Excusable neglect has been defined as excusable carelessness, "attributable to an honest mistake that is compatible with due diligence and reasonable prudence." Mancini v. EDS, 132 N.J. 330 (1993). The circumstances which constitute excusable neglect are fact sensitive. See Bergen Eastern Corporation v. Koss, 178 N.J. Super. 42, Appellate Division, appeal dismissed, 88 N.J. 499 (1981). That case affirms the finding of excusable neglect made by the Trial Judge in respect of an aged widow with a psychiatric history who did not appreciate the import of service of a tax foreclosure complaint.
Here, Ortiz was a small business owner. He admits knowledge of the import of the complaint and the summons, and he was aware that he had coverage for same through his insurance carrier. He claims that he asked his wife to forward the complaint to the insurance company to handle. Nonetheless, despite not hearing from his insurance company and the receipt of Court papers regarding the matter, Ortiz did nothing to act in his defense. He does not claim mental capacity. The facts indicate that he knew the complaint was serious and important, but despite hearing nothing from his insurance company and despite receiving additional Court papers and papers from counsel he still assumed the matter was being attended to by the insurance company. ...